Sharpley v. Forwood's Ex'r.

4 Del. 336

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

By the Court.

—The general principle is, that money directed to be laid out in land, is treated as landand land directed to be sold, is money or personalty. (5 Law Lib. 4; Leigh & Dalzell 4; 1 Bro. Ch. C. 497; Fletcher vs. Ashburner; Amb. 581, Wainwright vs. Benlows.)

If there be a general conversion, the kind of property is entirely changed; but if only for certain purposes, there is a resulting interest for the heir at law. (5 Law Lib.; Leigh & Dal. 119; 3 P. Wms. 21, n.; Mallabar vs. Mallabar.)

If there be no direction as to the object of the conversion, and the land is directed to be sold, it is a change out and out of the realty into personalty. (Ambler 583; 5 Law Lib. 130; Cook vs. Duckenfield, 2 Atk. 562.)

The direction in this will is general, to the executors to sellthe land without special object, unless as connected with the previous clause, which directs the payment of debts out of the personal property, and sale of the land. The land is not directed to be sold for that purpose, but only that the debts shall be paid out of the personalty as enlarged by the sale of the land. The first clause blends the personal property and proceeds of sale of land together; and directs payment of debts and funeral expenses out of the fund. It is not the principal provision; but is ancillary. The last clause is the principal and independent clause, the purpose of which was to augment the personalty.

JufiGMEXT.—And now to wit, this first day of December, A. D., 1845, the Court being of opinion that it was the intention of the testator to convert the real estate ordered to be sold by his executor, absolutely into personal property, and as such, subject it to the payment of pecuniary legacies. It is ordered that judgment be entered in favor of the plaintiffs; the amount to be ascertained by the register of wills, upon a settlement of ttie account of the defendant’s executor.